Supreme Court Allows Appeal in Probation of Offenders Act Case by Directing High Court to Apply Section 6 to a Juvenile Offender. The Court Held That Appellate and Revisional Courts Are Empowered Under Section 11 to Pass Orders Under Section 6 Even When the Trial Conviction Predated the Act's Extension.

Case Note & Summary

The Supreme Court of India, by a majority of two judges, allowed an appeal by special leave against the order of the Punjab High Court which had declined to apply the Probation of Offenders Act, 1958 to a young offender. The background was a criminal prosecution against a 16-year-old resident of Palwal, Gurgaon District, who committed house trespass and attempted to outrage the modesty of a seven-year-old girl. The Magistrate, First Class, Palwal convicted him on 31 May 1962 under Sections 451 and 354 of the Indian Penal Code, sentencing him to six months' rigorous imprisonment under each count to run concurrently, along with a fine of Rs 200 under Section 451 and default rigorous imprisonment of two months. At the time of conviction, the Probation of Offenders Act, 1958 had not yet been extended to Gurgaon District; it came into force there only on 1 September 1962. The accused's appeal before the Additional Sessions Judge, Gurgaon was dismissed on 22 September 1962, after the Act had come into force, but neither the accused nor the court invoked the Act. The revision petition filed in the High Court was dismissed in limine on 27 September 1962, again without reference to the Act. Thereafter, the accused filed Criminal Miscellaneous Petition No. 793 of 1962 requesting the High Court to exercise jurisdiction under Section 11 and pass orders under Sections 3, 4 or 6 of the Act, but that application was dismissed. A certificate of fitness under Article 134(1)(c) of the Constitution was also refused, which led to the present appeal by special leave. The core legal issue was whether the High Court, acting under Section 11 of the Probation of Offenders Act, 1958, could exercise power under Section 6 in respect of an accused convicted by the trial court before the Act came into force in that area. The appellant contended that having regard to the admitted facts, the High Court should have acted under Section 11 and released him on probation of good conduct. The State argued that the Act was not retrospective and would not apply because the conviction predated its extension, that the phraseology of Sections 6 and 11 did not permit such exercise, and that the appellant was precluded by his failure to raise the plea until after the revision was disposed of. The majority, comprising Subba Rao and Das Gupta JJ., rejected the State's contentions. It observed that the Act was a milestone in the liberal trend of penology, recognizing that the object of criminal law is more to reform than to punish. The Act imposed a mandatory duty on courts not to sentence offenders below 21 years to imprisonment unless satisfied that it was not desirable to deal with them under Sections 3 or 4. Section 11(1) empowered any court, including appellate and revisional courts, to make an order under the Act, and its language ex facie did not circumscribe the appellate court's jurisdiction to cases where the trial court could have made the order. The term 'court' in Section 6(1) included appellate and revisional courts. Since the Act did not alter the quantum of sentence but introduced a reformative provision, there was no reason to prohibit its application merely because the case was at appellate stage after the Act came into force. The majority further held that although the appellant had not raised the point earlier, the lower courts had ignored mandatory provisions, and the delay did not absolve them of their duty. Consequently, the Supreme Court set aside the High Court's order and directed the High Court to make an order under Section 6 or, if it so desired, remand the case to the Sessions Court for that purpose. Raghubar Dayal J. dissented, taking the view that when a finding of guilt for an offence to which Sections 3 and 4 could apply was arrived at before the application of the Act, the appellate or revisional court could not take action under Section 11(1), because the principle of allowing advantage of a new law during pendency was meant to save multiplicity of proceedings and did not apply to the present case.

Headnote

Issue of Consideration

Final Decision

Appeal allowed; order of the Punjab High Court set aside; High Court directed to make an order under Section 6 of the Probation of Offenders Act, 1958 or, if it desired, remand the case to the Sessions Court for that purpose. Majority per Subba Rao and Das Gupta JJ.; Raghubar Dayal J. dissented.

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